Shankar vs State By
2022 Latest Caselaw 225 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 6TH DAY OF JANUARY, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

              THE HON'BLE Mrs. JUSTICE M.G. UMA

                CRIMINAL APPEAL No.1842/2016


BETWEEN:

SHANKAR
AGED ABOUT 27 YEARS,
S/O SRI RAMAKRISHNAPPA,
R/AT: C/O CHIKKANANJA REDDY BLDG,
HEELALIGE VILLAGE,
ANEKAL TALUK,
NATIVE OF GUNJARAPALLI VILLAGE,
SHANTHIPURA MANDALA,
CHITTOOR TQ,
ANDHARA PRADESH - 517 423.

                                                  ... APPELLANT

(BY SRI. RAVI B. NAIK, SENIOR COUNSEL FOR
    SRI. PATTABI RAMAN C. ADV.)


AND:

STATE BY:
THROUGH CPI, ATHIBELE CIRCLE,
ATHIBELE, PRESENT:
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S.P.P., HIGH COURT BUILDING
BENGALURU - 01.

                                                 ... RESPONDENT

(BY SRI. K. NAGESHWARAPPA, HCGP)


        THIS CRIMINAL APPEAL FILED U/S.374(2) CR.P.C BY THE

ADV. FOR THE APPELLANT/ACCUSED PRAYING THAT THIS HON'BLE

COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND

ORDER DATED 7.04.2015 PASSED BY THE III ADDL. DIST. AND

S.J.,   BENGALURU    RURAL    DISTRICT,    SIT   AT   ANEKAL   IN

S.C.NO.5050/2013 - CONVICTING THE APPELLANT/ACCUSED FOR

THE OFFENCE P/U/S 302 OF IPC 302 of IPC.


        THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO

IMPRISONMENT FOR LIFE AND PAY FINE OF RS.50,000/-, IN

DEFAULT TO PAY FINE, HE SHALL UNDERGO IMPRISONMENT FOR 3

YEARS FOR THE OFFENCE P/U/S 302 OF IPC.



        THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING

THIS DAY, M.G. UMA J., DELIVERED THE FOLLOWING:
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                             JUDGMENT

The appellant being the accused is impugning the judgment of

conviction dated 07.04.2015 and order of sentence dated

08.04.2015 passed in S.C.No.5050/2013 on the file of the III

Additional District & Sessions Court, Bengaluru Rural District, sitting

at Anekal (herein after referred to as the 'trial Court'), whereunder,

he was convicted for the offence punishable under Section 302 of

IPC and sentenced to undergo imprisonment for life and to pay a

fine of Rs.50,000/-. In default to pay fine to undergo further

imprisonment for 3 years.

2. It is the contention of the prosecution that the accused

had borrowed a hand loan of Rs.3,000/- from the deceased-

Bhramaramba about one year back and had not repaid the same

inspite of repeated request. However, the accused was annoyed as

the deceased was repeatedly demanding him to pay back the

amount/loan taken from her. On 25.03.2013, the accused decided

to cause the death of the deceased and at about 12:30 noon, he

noticed that the deceased was all alone in her house, he entered

into the house and assaulted her with a knife on her head, neck and

forehead etc., and caused fatal injuries. Immediately, the injured

was shifted to the Hospital, but she succumbed to the injuries.

Thereby the accused committed the offence punishable under

Section 302 of IPC.

3. PW.2 being the husband of the deceased, lodged the

first information as per Ex.P1. Accordingly, Hebbagodi Police

registered the case against the accused in Crime No.170/2013 for

the offence punishable under Section 302 of IPC and investigated

the matter. After investigation, the charge sheet came to be filed

against the accused. The learned Magistrate committed the matter

to the trial Court. The accused appeared before the trial Court and

pleaded not guilty for the charges leveled against him and claimed

to be tried. The prosecution examined PWs.1 to 10 and got marked

Exs.P1 to P13 and identified MO.1 i.e., Knife used by the accused in

commission of the offence. The accused has denied all the

incriminating materials available on record, but has not led any

evidence in support of his defence. The trial Court after considering

all these materials on record, came to the conclusion that the

prosecution is successful in proving the guilt of the accused beyond

reasonable doubt. Accordingly, he was convicted and sentenced as

stated above.

4. Being aggrieved by the judgment of conviction and

order of sentence passed by the trial Court, the accused is before

this Court seeking to allow the appeal and to acquit him for the

offence charged.

5. We have heard the learned counsel for the parties.

6. Sri. Ravi B Naik, learned Senior Counsel for Sri. Pattabi

Raman.C, learned counsel for the appellant submitted that the

impugned judgment of conviction and order of sentence passed by

the trial Court is perverse, illegal and liable to be set aside. He

further submits that there are material contradictions and

inconsistencies in the evidence led by the prosecution. As per the

case made out by the prosecution, PWs.1 and 3 alone are the eye-

witnesses to the incident, but the materials on record disclose that

there are several persons gathered at the scene of occurrence

immediately after the incident. None of them were examined by the

prosecution for the reasons best known to it. Even the evidence of

PWs.1 and 3 are inconsistent and cannot be accepted. PW.1

specifically states that the accused was caught red-handed

immediately after the incident, but PW.3 states that the accused

ran away from the scene of occurrence. PW.3 further states that

himself had lodged the first information immediately after the

incident, but the said first information is suppressed by the

Investigating Officer and there is inordinate delay in registering the

FIR. Even though it is stated by PW.3 that police were very much

present at the scene of occurrence, but no FIR was registered

immediately. There is inordinate delay in registering the FIR, which

also raises doubt about the presence of PWs.1 and 3 at the scene of

occurrence. Even though PW.1 categorically states that the accused

was apprehended and brought back to the spot within 5-10 minutes

by the public who were gathered at the scene of occurrence, the

evidence of PWs.8 and 9 are contradictory statements stating that

the accused was arrested on 29.03.2013 i.e., four days after the

incident. This clearly discloses that the Investigating Officers have

deposed falsely and in fact accused was illegally detained in custody

without any authority. When such is the evidence placed before the

Court, even recovery of the Knife said to be at the instance of

accused also falls to the ground.

7. Learned Senior Counsel further submitted that no Test

Identification Parade was conducted by the Investigating Officer to

enable the eye-witnesses to identify the accused. PW.2 in his

evidence states that he reached the scene of occurrence much

later, but the injured was still at the spot. However, PW.3 states

that immediately after the incident, the injured was shifted to the

Hospital. Such inconsistent statements on the part of the material

witnesses creates serious doubt about the manner in which the

incident had occurred and about the author of the crime. Thus, the

evidence of PWs.1 to 3 is most unreliable.

8. Learned Senior counsel further submitted that MO.1-

Knife said to have been stained with blood was never forwarded for

chemical examination and there is no explanation offered by the

Investigating Officer in this regard. Therefore, there are reasonable

doubt about the case made out by the prosecution and the accused

is entitled for the benefit of doubt and he should be acquitted. On

the other hand, trial Court proceeded to convict the accused

without any basis. Therefore, he prays for allowing the appeal and

acquit the accused for the offence punishable under Section 302 of

IPC in the interest of justice.

9. Per contra, learned HCGP supporting the judgment of

conviction and order of sentence passed by the trial Court,

contended that PW.1 is the owner of the house, where the incident

had taken place and PW.3 is having a shop in the said building and

their presence at the scene of occurrence is quite natural and

cannot be disputed. Both these witnesses have reached the spot on

hearing the cry of the deceased. Both these witnesses consistently

stated that the door of the house in question was closed and when

they knocked the door, the accused opened the latch and ran away

from the scene of occurrence with the blood-stained knife in his

hand. Both these witnesses have entered the house and saw the

deceased in pool of blood with fatal injuries. Immediately the

persons gathered there, tried to chase and apprehend the accused.

PW.1 states that even though the accused ran away from the scene

of occurrence, he was brought back by the persons gathered there.

However, PW.3 categorically states that the accused could not be

apprehended as he ran away from the scene of occurrence.

10. Learned HCGP further contended that it can not be

termed as material contradiction in the evidence of PWs.1 and 3.

Ofcourse there is minor inconsistency in the evidence of these two

material witnesses as to whether the accused was apprehended at

the spot or not. PW.1 during her chief examination, specifically

stated that when she was in her house, she heard the cry of the

deceased and immediately went near her house, but the door was

locked from inside. Some persons gathered at the spot, including

CWs.2 and 3. Thereafter, accused opened the door of the house

and ran away by holding the knife in his hand. CWs.2 and 3 chased

him. It is stated that PW.1 noticed that deceased was laying in the

pool of blood in the Hall and CWs.2 and 3 have informed the

husband of the deceased about the incident, who came to the spot

and thereafter the injured was shifted to the Hospital. PW.1

identified the accused before the Court and during cross-

examination, witness reiterated her evidence and has spoken to in

the chief examination and also stated that clothes of the accused

were also blood stained but however she pleaded her ignorance

about the colour of the clothes, which were worn by the accused on

the date of incident. During the cross-examination, witness

reiterated that the accused had ran away from the scene of

occurrence, but however PW.1 stated that after 5-10 minutes, the

accused was brought back by the persons who were gathered at the

scene of occurrence. This stray sentence was elicited from PW.1

during cross-examination. During further cross-examination of

PW.1 or any other witnesses, this stray sentence spoken to by the

witness was not taken advantage of. It is pertinent to note that

PW.3 who is also an eye-witness to the incident was also cross-

examined but the statement of PW.1 that the accused was

apprehended and brought back near the house of the deceased was

not strengthened. Even at the time of cross-examination of PW.8

who apprehended the accused on 29.03.2013, it is not even

suggested that the accused was already apprehended on the date

of incident itself.

11. Learned HCGP further submitted that there is absolutely

no material contradiction in the evidence of PWs.1 and 3 who are

the eye-witnesses to the incident. The evidence of PWs.1, 3, 8 and

9 is consistent with regard to plea of the accused after commission

of the offence by holding the blood-stained knife and his

apprehension subsequently. Learned HCGP also contended that

PW.7 has spoken to about Ex.P4; the recovery mahazar

whereunder, the knife-MO.1 was recovered at the instance of the

accused. This evidence of PW.7 is corroborated by PW.9 who is the

Investigating Officer. The version of PW.7 is not shaken during his

cross-examination. Interestingly, PW.9 is not at all cross-examined

by the learned counsel for the accused and therefore, the evidence

of PW.9 remains unchallenged.

12. Learned HCGP also submitted that PWs.5 and 6 have

deposed regarding Ex.P3-Inquest mahazar, which is supported by

PW.10-the Doctor who conducted postmortem examination and

issued the postmortem report as Ex.P9. As per this document, there

were 10 injuries, which could be caused by MO.1-Knife. Therefore,

there is consistency in the evidence of the prosecution witnesses

which clearly establishes the guilt of the accused beyond reasonable

doubt. Even though the accused is examined under Section 313 of

Cr.P.C., he has not stated anything except baldly denying such

incriminating materials. He has not stepped into the witness box to

falsify the contention of the prosecution. Under such circumstances,

the accused is liable for conviction. He further submitted that the

trial Court has taken into consideration the oral and documentary

evidence placed before it and has arrived at a right conclusion.

There are absolutely no reasons to interfere with the same. Hence,

he prays for dismissal of the appeal in the interest of justice.

13. In view the rival contentions urged by the learned

counsel for the parties, the only point that arises for our

consideration is:-

"Whether the Appellant has made out any

grounds for interference with the impugned

judgment of conviction and order of sentence

passed by the Trial Court in convicting the

accused for the offence punishable under Section

302 of IPC in the facts and circumstances of the

present case?"

14. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties and

perused the entire material including the original records carefully.

15. It is the specific contention of the prosecution that the

deceased had lent hand loan of Rs.3000/- to the accused, which he

had not returned to her. Therefore, she used to insist him for

repayment of the said hand loan and accused was annoyed by the

same. On 25.03.2013, the accused with an intention to finish of

the deceased, came near her house at about 12:30 in the noon. As

he found that the deceased was alone in her house, he gained entry

into the house with a knife and assaulted the deceased on her

head, forehead and neck etc., and caused fatal injuries.

Immediately, the injured was shifted to the Hospital, but she

succumbed to the injuries sustained by her. Thereby, the accused

committed the offence punishable under Section 302 of IPC. To

prove the case, the prosecution examined PW.1-the owner of the

house, where the deceased was residing and the accused caused

her death. This witness as eye-witness to the incident has stated

on oath that at about 12:30 noon, while she was in the house, she

heard the cry of the deceased-Bhramaramba from her house and

immediately she went near her house and noticed that the door was

locked from inside and therefore, she called the neighboring

persons. CWs.2 and 3 have came to the spot. The accused from

inside the house opened the door and ran away from the scene of

occurrence by holding a knife in his hand. CWs.2 and 3 chased him.

Witness further stated that she went inside the house and found the

deceased-Bhramaramba on the ground, in a pool of blood and she

had sustained bleeding injuries. CWs.2 and 3 called the husband of

the deceased and immediately the deceased was shifted to the

Hospital. Witness stated that she knows the accused and can

identify him. Accordingly, she identified the accused. During cross-

examination, witness stated that she heard the cry of the deceased

from inside her house and several persons including CWs.2 and 3

have came to the spot, but she does not know the names of other

persons who were gathered there. She pleaded her ignorance to the

length of the blood-stained knife, which was held by the accused.

However, she stated that the clothes of the accused were also

stained with blood, but pleaded her ignorance regarding the colour

of his clothes. Witness stated that the accused was brought back to

the spot within 5-10 minutes, but pleaded her ignorance whether

the persons gathered there have enquired with the accused

regarding the knife. Witness admitted the suggestion that she had

seen the injuries sustained by the deceased at the time of inquest

panchanama. Witness admitted that she has not seen the accused

stabbing the deceased. But she heard the cry of the deceased and

also seen the accused opening the door of the house of the

deceased and running away by holding a knife in his hand. She

denied the suggestion that she is deposing falsely.

16. This witness was again cross-examined by recalling her,

wherein it is elicited from the witness that she resides in the

neighboring house of the deceased and both the houses have a

common wall. Therefore, she could hear the cry of the deceased in

her house. Witness pleaded her ignorance that the accused was

residing in her neighboring house for a period of ten years.

Deceased had come to the house in question as tenant about three

months earlier to the incident. Immediately, after hearing the cry,

she knocked the door of the home of the deceased, but denied the

suggestion that deceased herself had locked the door from inside.

Witness again stated that it was the accused who had locked the

door from inside. She denied the suggestion that immediately after

the incident, she alone had come to the spot and thereafter went

away. Witness reiterated that the deceased was crying and

therefore she also cried, as a result of which several persons

gathered at the scene of occurrence. The accused opened the door

and ran away from the spot. She denied the suggestion that she

had not seen the accused till date and that the accused had not

caused the death of the deceased.

17. PW.3 is the another eye-witness to the incident, who

states on oath that the deceased along with PW.2 was residing in

the house belonging to PW.1 and the accused was also residing in

the same building. Witness stated that he is having a shop in the

said building and on 25.03.2013 at about 12:30 noon, while he was

talking to CW.2, he noticed that the accused going towards the

house of the deceased and about ten minutes thereafter, he heard

the cry from the house of CW.1. Immediately, he along with CW.2

went to the spot where several persons were gathered and the door

of the house was latched from inside. In the meantime, the accused

opened the door of the house and ran away after pushing them

away. At that time, the accused was holding a blood- stained knife

in his hand. Witness stated that when he went inside the house, he

found the deceased-Bhramaramba fallen on the ground in a pool of

blood. Immediately, he informed this fact to CW.1. The police

came and shifted the injured to the Hospital and on the same day

at about 2:30 p.m., the injured had died due to the injuries

sustained by her. Witness stated that he came to know that the

deceased had lent an amount to the accused and since she insisted

for repayment, the accused had assaulted her with the knife.

Witness stated that the police have drawn panchanama as per

Ex.P2. There were blood stains inside the house and the same was

collected by the police.

18. During cross-examination by the learned counsel for the

accused, witness stated that when he noticed accused going

towards CW.1 house, he had not seen any weapon in his hand. He

had seen the accused while he was passing about 30 feet away.

Witness stated that he heard the cry from the neighboring person

and went to the spot. CWs.4 and 5 were already present at the spot

and the witness along with CW.2 rushed to the spot. All of them

started banging the door and in the meantime, the accused opened

the door and ran away with the knife. All of them noticed that

deceased-Bhramaramba was fallen in the pool of blood. Witness

stated that till the arrival of the police, they have not gone inside

the house. The knife which was held by the accused was blood

stained, so also his clothes and hands were stained with blood.

Witness stated that since the accused was all alone in the house of

deceased by latching the door, he is responsible for causing the

death of the deceased. He denied the suggestion that he had seen

the dead body in the Hospital and signed Spot Panchanama-Ex.P2

in the police station. He denied the suggestion that he is deposing

falsely.

19. During further cross-examination by the learned

counsel for the accused, witness denied the suggestion that when

he peeped into the window, he found the deceased hale and healthy

and that the accused was not inside the house. The witness was

again recalled for cross-examination and during such further cross-

examination, witness reiterated his earlier statements saying that

the accused had ran away from the scene of occurrence and also

stated that 3-4 persons including him have chased accused, but

they could not catch him and therefore returned about ten minutes

thereafter. Witness denied the suggestion that when he peeped into

the window, the accused was not holding knife but only when he

was coming out of the house, he was holding the knife. Witness

stated that he has given the complaint to the police.

20. Learned Senior Counsel for the appellant/accused

submitted that there are material contradictions in the evidence of

PWs.1 and 3 who are the material witnesses. According to the

learned Senior Counsel, PW.1 categorically stated that the accused

was apprehended by the persons who have gathered at the scene

of occurrence but according to PW.3, the accused had ran away

from the scene of occurrence. Similarly, PW.8 states that the

accused was apprehended on 29.03.2013 and PW.9 also states so.

But PW.1 specifically stated that the accused was caught by the

persons who gathered at the spot. Thus, learned Senior Counsel

contends that the accused was kept in an illegal detention by the

police, which is not explained by them and they have concocted the

documents to show that he was apprehended after four days i.e.,

29.03.2013. We are unable to accept the contention urged by the

learned Senior Counsel for the simple reason that PW.1, a lady

working in a Garments Factory stated in the chief examination that

the accused had opened the door and ran away from the scene of

occurrence by holding a knife in his hand. Witness was cross-

examined on different dates and during such searching cross-

examination, a stray sentence was elicited that the accused was

caught and brought back to the spot by the persons who were

gathered there, within 5-10 minutes. Even during further cross-

examination of this witness, the statement of the witness was not

further strengthened nor it was taken advantage of. Even PW.3 also

categorically stated that the accused had ran away from the scene

of occurrence by holding blood-stained knife in his hands. There is

absolutely no cross-examination by the learned counsel for the

accused that the persons who have gathered at the scene of

occurrence apprehended the accused and was brought back to the

scene of occurrence.

21. PW.8 is the Police Sub Inspector who registered the FIR

by receiving the first information by PW.2 and handed over it for

further investigation to PW.9. Witness states that as per the

direction of PW.9, he traced the accused on 29.03.2013 at about

5:00 a.m., and produced him before the PW.9 on the same day at

6.00 a.m., along with report as per Ex.P6. This witness was cross-

examined by the learned counsel for the accused. Witness pleaded

his ignorance as to whether the first information was written by the

informant in the police station or whether the same was brought

prepared. Witness stated that no panchanama was drawn at the

time of apprehending the accused as the same was not required.

He denied that he had not apprehended the accused on 29.03.2013

and the accused was detained in the police station. PW.9 the

Investigating Officer also supports this evidence of PW.8 and he

was never cross-examined by the accused.

22. PW.7 is an independent witness supported the case of

the prosecution with regard to the voluntary statement given by the

accused suggesting the Investigating Officer that he will lead them

to the spot where he had thrown the Knife and the accused led the

Police and Panchas to the spot and produced the knife from a bush.

It is stated that Ex.P4 was drawn in his presence. During the cross-

examination by the learned counsel for the accused, witness states

that he had seen the knife which was about one feet length and it

had blood stains on it. He denied the suggestion that he was not

accompanied with the Police and Ex.P4 was not drawn in his

presence. He denied the suggestion that he is deposing falsely.

23. It is also pertinent to note that PW.9-Investigating

Officer who states that he took further investigation in the matter

and visited the spot, inquest mahazar was drawn, the statements of

witnesses were also recorded and spot mahazar was also drawn at

the spot. The blood-stained pillow was seized, the blood found on

the floor was also collected. Witness stated that the accused was

apprehended by PW.8 and produced before the incharge Circle

Inspector of Police (CPI) as the witness was on leave. The accused

was produced before the jurisdictional Magistrate and he was taken

into police custody for two days. The accused has given

voluntary/confession statement as per Ex.P7. On the basis of such

statement, the accused led the Investigating Officer and mahazar

witnesses to the land belonging to one Ramappa and took out the

knife and T-Shirt from the bush. Both these incriminating materials

were seized in the presence of Panchas under Ex.P4. Witness

identified the knife produced by the accused as per MO.1 and stated

that he could identify T-Shirt as well. Witness stated that he

received postmortem report and further stated that MO.1-knife was

sent to FSL examination, but he could not get FSL report till filing of

the charge sheet. Witness identified Exs.P10 to P12 as the photos

taken at the time of Spot Mahazar. He identified Ex.P13, the photo

and the same was taken when the accused took out the knife from

the bush and produced before him. Interestingly, this witness is not

cross-examined even though cross-examination was deferred at his

request. Therefore, the version of PW.9 remains unchallenged. This

witness specifically states regarding apprehension and production of

accused before him, voluntary statement given by the accused and

the accused leading the Investigating Officer and material witnesses

to the spot and recovery of the knife at the instance of the accused.

When such is the evidence before the Court, the contention of the

learned Senior Counsel that the accused was apprehended on the

date of incident itself on the spot and he was illegally detained by

the police from 25.03.2013 till 29.03.2013 is to be rejected. The

contention of the learned Senior Counsel that the evidence of PW.1

who states that the accused was apprehended and brought back to

the spot on the date of incident itself and evidence of PW.3 that the

accused ran away from the scene of occurrence amounts material

contradiction, also cannot be accepted in view of the evidence of

PWs.1 and 3. In that regard, as discussed above PW.1 specifically

stated during her evidence that accused had ran away from the

scene of occurrence but however, the said sentence was elicited

during her cross-examination that he was brought back after 5-10

minutes. The said statement of PW.1 was not gained support even

when PW.3 the other eye-witness was cross-examined nor it was

strengthened while cross-examining PW.8 who apprehended

accused on 29.03.2013. The learned counsel for the accused has

not chosen to cross-examine PW.9 who specifically states that the

accused after apprehension by PW.8 was produced before the

incharge CPI. It was never the contention of the accused that he

was apprehended at the spot and was detained illegally. Therefore,

the submission of the learned Senior Counsel is to be rejected.

24. Ex.P1 is the first information lodged by PW.2-Husband

of the deceased. PW.2 stated that he received information

regarding causing of death of his wife and immediately thereafter

within 15-20 minutes he came near his house and found several

persons gathered in front of his house. He went inside the house

and found his wife in pool of blood. He also noticed stabbed injuries

on her body. Thereafter, she was shifted to Sparsha Hospital,

where she was declared dead. Witness stated that he lodged the

first information as per Ex.P1. Witness stated that the deceased had

lent hand loan of Rs.3,000/- to the accused and was demanding for

repayment of the same. But the accused did not repay the same.

Since the deceased insisted him to repay the loan amount, he

caused her death. During cross-examination, witness pleaded his

ignorance regarding the date on which the loan was lent to the

accused. Witness stated that since the deceased had demanded

back the loan amount, he came to know about the lending of the

amount. Witness stated that since he was giving all his earnings to

his wife, she was having Rs.3,000/- with her. He denied the

suggestion that no amount was lent to the accused. Witness stated

that he heard about the incident over phone. PW.1 is the owner of

his house and therefore, he was knowing his mobile number.

CWs.2, 3 and 7 were standing in front of his house when he came

to the spot. He heard that the accused had caused the death of his

wife and had ran away from the scene of occurrence. He denied the

suggestion that there was no loan transaction between his wife and

accused and he had never seen the accused before.

25. Witness stated that he got written Ex.P1 from others

and signed the same after hearing what it contains. Witness denied

the suggestion that the accused is not at all connected to the

offence in question. This witness also again during further cross-

examination stated that the amount of Rs.3,000/- was lent to the

accused about 5-6 months earlier to the incident. The accused was

residing in his brother's house since about 14-15 years, which is

situated on the back side of the house of the deceased. Witness

admitted the suggestion that the accused was frequently visiting his

house. However, he denied the suggestion that no amount was

paid to accused by the deceased. Witness stated that he came to

the spot within half an hour and thereafter the deceased was taken

to the Hospital, where she was declared dead at about 2:30 p.m.

26. It is interesting to note that learned counsel for the

accused specifically suggested to the witness that accused was

frequently visiting the house of the deceased, which was admitted

by the witness. the house which was situated on the back side of

the house of the deceased from 14-15 years. Therefore, the

contention of the learned Senior Counsel that there was no Test

Identification Parade held by the Investigating Officer and same is

fatal to the case of the prosecution cannot be accepted. Even

PWs.1 and 3 also specifically stated in their evidence that accused

is their neighbor and identified him. It is not the defence taken by

the accused that he was not known to any of these witnesses.

Under such circumstances, conducting of Test Identification Parade

by the Investigating Officer is not required. The accused has not

taken any specific defence to contend that there is mistaken

identity. It is also not the contention of the accused that he is

falsely implicated in the matter for any specific reason. No ill-will or

motive is suggested either against PWs.1, 2, 3 or not even against

PWs.8 and 9. Under such circumstances, the contention of the

learned Senior Counsel that all these witnesses are deposing falsely

and that the accused detained illegally in the Police Station till

29.03.2013, cannot be accepted. If at all, there was such illegal

detention of the accused for 4-5 days, the accused should have

stated so before the learned Magistrate when he was produced

before him. No such materials are available before the Court to

substantiate such contention. If such is the case, PW.9 could have

been cross-examined by the learned counsel for the accused. In

the absence of any such material, the contention taken by the

learned Senior Counsel cannot be accepted.

27. PWs.5 and 6 are the witnesses for the inquest mahazar.

Both these have supported the prosecution and stated that the

inquest mahazar was conducted in their presence and mahazar as

per Ex.P3. was drawn. PW.5 was cross-examined by the learned

counsel for the accused, who denied the suggestion that he signed

the inquest material in the police station. PW.6 who also supported

the case of the prosecution, is not cross-examined. As per Ex.P3,

the inquest mahazar, there were as many as eight external injuries

found on the dead body. These injuries were on the forehead, right

and left side of the head, on left ear, right side on the neck on the

hand and palm.

28. PW.10, the Doctor who conducted postmortem

examination, stated that he conducted postmortem examination of

the deceased-Bhramaramba, aged 55 years and noticed as many as

nine injuries. He opined that all those injuries were caused with a

sharp edged weapon. The postmortem report is at Ex.P9. During

cross-examination, witness admitted that except stab injury found

on the neck, all other injuries were lacerated wounds. Witness

stated that stab injury on the neck was fatal injury. He denied the

suggestion that the stab injury on the neck was not fatal and that

the death of the deceased was due to negligence of the Doctors.

Ex.P9-postmortem report corroborates with evidence of PW.10 and

as per the opinion expressed by PW.10, the death was due to

"shock and hemorrhage as a result of stab injury to the neck

sustained". This evidence of PW.10 along with Ex.P9 corroborates

the evidence of PWs.5 and 6 regarding inquest mahazar and the

injury sustained by the deceased, which also corroborates with the

evidence of PWs.1 to 3.

29. Learned Senior Counsel contended that MO.1-Knife was

never sent for chemical examination and therefore, the same

cannot be relied on. The evidence of PW.9-Investigating Officer

discloses that the Knife in question was in fact sent for FSL

examination, but the report was not received till filing of the charge

sheet. However, the prosecution could have secured the FSL report

and could have produced before the Court, which has not been

done in the present case. It is the lapse on the part of the

Investigating Officer, but the case of the prosecution does not rests

only on recovery of MO.1-Knife at the instance of accused. But the

prosecution is relying on the version of the eye-witnesses i.e.,

PWs.1 and 3, who have categorically stated that the accused had

ran away from the scene of occurrence with the blood-stained knife

in his hand.

30. It is also pertinent to note that Ex.P7 is a

voluntary/confession statement of the accused suggesting the

Investigating Officer that he could lead to the place and produce

the knife used in the commission of offence. Ex.P4 is a recovery

mahazar drawn in the presence of the witness-PW.9. Witness states

that accused led him along with panchas to the spot i.e., to the land

belonging to one Ramappa and produced knife-MO.1. Ex.P13 is the

photo taken at the time when the accused took out knife from the

bush and produced before him. There is absolutely no cross-

examination to PW.9 by the learned counsel for the accused. Under

such circumstances, recovery of incriminating materials at the

instance of the accused remains unchallenged and it will provide a

major lead in connecting the accused to the offence in question.

31. Even though the material witnesses i.e., PWs.1, 3, 7, 8

and 10 were cross-examined at length, nothing has been elicited

from any of these witnesses to disbelieve the version of the

prosecution. PW.9-Investigating Officer, who is also material

witness, is not cross-examined by the learned counsel for the

accused. It is also pertinent to note that the accused has not taken

any defence even in his statement recorded under Section 313 of

Cr.P.C. Except totally denying the case of the prosecution. The

evidence of the prosecution witnesses disclose that there is only

bald denial of the case made out by the prosecution. But however,

no motive is suggested against any of these material witnesses for

his false implication or to depose falsely against him. Under such

circumstances, the contention of the learned counsel for the

accused that the prosecution is not successful in proving the guilt of

the accused beyond reasonable doubt, cannot be accepted. The

prosecution placed the oral and documentary evidence against the

accused to prove the guilt of the accused beyond reasonable doubt.

The accused has not taken any defence nor probablised his false

implication. Therefore, we are of the considered opinion that the

prosecution is successful to prove the guilt of the accused beyond

reasonable doubt.

32. After re-appreciating the entire material on record and

the impugned judgment of conviction and order of sentence passed

by the trial Court, we are of the considered opinion that there are

no reasons to interfere with the same. Hence, we answer the above

point in negative.

33. In view of the discussions held above, we proceed to

pass the following:

ORDER

Criminal appeal is dismissed as devoid of merits.

Sd/-

JUDGE

Sd/-

JUDGE

SMJ